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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Batey v Burton [2002] EWCA Civ 957 (24 June 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/957.html Cite as: [2002] EWCA Civ 957

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBROUGH COUNTY COURT
(HIS HONOUR JUDGE BRYANT)

		Royal Courts of Justice Strand London WC2A 2LL Monday 24 June 2002

1. LORD JUSTICE MAY: This is an application by Mr Platford, on behalf of Mr Batey, for permission to appeal against the judgment and order of His Honour Judge Bryant of 6 March 2002. Litigation of one kind or another has been going on relevant to these proceedings since at least 1987. It is a long and unhappy story.
2. Permission to appeal was refused by Tuckey LJ on 17 May 2002. Giving his written reasons, Tuckey LJ said:

"Grounds 1 and 2 [of the grounds of appeal] challenge the judge's findings of fact at page 42 of his judgment. The reasons he gives for this finding are compelling and I see no real prospect that this court could be persuaded to disagree with him. Ground 3 is dependent on the success of Grounds 1 and 2."

3. The claim in the present proceedings is a claim by Mr Batey for damages for negligence against his former solicitors, Watson Burton. These solicitors were instructed fairly late in the day, in March 1992, in connection with a hearing before the Court of Appeal on Monday 11 May 1992. Accordingly, they were only instructed for a period of some two months or so.
4. The outline summary of events concern the affairs of the Sunderland Association Football Club back in 1986, when a Mr Murray held 45 per cent of the shares in the club. At the time Mr Batey, the applicant, held a little over 25 per cent of the shares. In early 1987 the club was in financial difficulties. Mr Murray's solution was to propose a rights issue, but Mr Batey thought it would be better to issue some preference shares. There was a disagreement between the two of them with other people involved on one side or the other. Mr Murray made a number of statements criticising Mr Batey which were reported in the press. On 24 March 1987 Mr Batey held a press conference to respond to Mr Murray's criticisms.
5. In March 1987 two High Court actions were started. One was in the Chancery Division. On 24 March 1987 a writ was issued naming a Mr Burn and a Mr Gillen as plaintiffs. Those proceedings sought to attack transactions under which Mr Murray had acquired his shares in the company. On 30 March Mr Murray started a defamation action with a number of issues against Mr Batey and the Newcastle Chronicle and Journal Limited. The action arose out of what Mr Batey had said at his press conference. One of the issues was whether Mr Batey was actuated in what he said by express malice.
6. The present issue concerns an appeal arising out of the defamation action. The defamation action was eventually tried by a judge and jury. The jury found unanimously in Mr Batey's favour. Mr Murray sought to appeal this decision. During the lead up to the appeal, a letter (previously undisclosed) dated 5 May 1987 came to light on discovery. This letter was relevant because Mr Batey had given evidence in the defamation proceedings that he had known nothing about the Chancery action until he read about it in the newspapers some time in the autumn of 1987. The letter stated:

"You may recall that I said that Mr Batey was the person who suggested that Mr Gillen would take part in certain proceedings after a conversation he had had with him."

7. The proceedings were perceived to be the Chancery proceedings about which Mr Batey said he had been unaware until the autumn of 1987. The suggestion was that, if this were true, it would show that Mr Batey had known about the Chancery action and, relevantly to the defamation proceedings, may have been instrumental in its initiation. That, again, would have been of relevance to the plea that he was actuated by express malice.
8. Upon these events, Mr Murray sought permission to amend his notice of appeal against the defamation judgment in order to rely upon the letter of 5 May 1987 and the failure to disclose it. This application occurred some time in the summer of 1991, but was not responded to for quite some time by Mr Batey, whose conduct of the proceedings appeared more or less to have run to ground. It was not until he instructed the respondents to this application in March 1992 that he and those advising him dealt with the application.
9. The appeal was eventually heard over a long period of time, starting in May 1992. Mr Murray's appeal was dismissed. Various substantive issues in the defamation action were decided on the appeal in Mr Batey's favour. But, following handing down of the judgments, there were submissions about costs. The Court of Appeal made an order that Mr Batey, who had won the appeal, should recover only 30 per cent of his taxed costs of the appeal. The present action was brought to recover the 70 per cent which amounts to just short of £100,000.
10. The appellant alleges against his solicitors that his failure to recover the whole of his costs resulted from negligence on their part. The allegations surround the handling of the evidence, or possible evidence, of Mr Burn, a solicitor. Mr Batey's position in these proceedings was that it was untrue that he had known about the Chancery action earlier than the autumn of 1987.
11. Mr Burn had sworn an affidavit in 1987 unfavourable to Mr Batey's position in this respect. In 1991 and early 1992 the evidence which it was understood he might give was also unfavourable. But, on or about 10 April 1992, following involvement by Mr Chandler, who was Mr Murray's solicitor in the appeal, Mr Burn made a statement which was more favourable to Mr Batey, if not exactly identical with Mr Batey's account. Meanwhile, Mr Chandler, in correspondence, was giving an account to the contrary, that Mr Burn would support Mr Murray's position on this evidence. The allegation against the present respondents, central to this application, was that they did not communicate to Mr Milmo QC, Mr Batey's leading counsel in the defamation proceedings, until very shortly before the appeal hearing was due to take place, the fact that Mr Burn had changed his tune and produced more favourable evidence. At that stage it was suggested that it was too late to deploy the evidence in a straightforward and persuasive way. It was then decided, first, to oppose the admissibility of evidence from Mr Chandler, which suggested in a hearsay way what Mr Burn's position was, and that of a Mr Ditchburn, also a solicitor. The fall-back position adopted was that if the application to exclude the evidence failed, an affidavit from Mr Burn would be prepared hurriedly to counter Mr Chandler's hearsay evidence. The application to exclude Mr Chandler's evidence did not succeed. On 13 May 1992 Mr Burn's affidavit was sworn and subsequently used. The result was that Mr Carman QC cross-examined Mr Burn for a long time. Much time was spent dealing this (as Mr Platford says) error by Mr Chandler and the costs mounted up. The case was that the adverse costs order which resulted from this would have been avoided if Mr Milmo had known about Mr Burn's revised evidence at an earlier stage. The difficulty raised by Mr Chandler could have been dispelled in a simple and straightforward way.
12. Judge Bryant held that the factual basis for these allegations was not established. He held that Miss Keating, the representative of the respondents who was dealing with the matter, told Mr Milmo of the new evidence of Mr Burn probably in the week after Easter 1992. He also held that Mr Milmo would not have advised employing Mr Burn's new statement in the way suggested. He held that the adverse costs order did not result from any of this, but from the matters relied on by Mr Carman when he argued the question of costs and that, in any event, time would have been taken up anyway because Mr Carman would have pursued cross-examination of Mr Burn and perhaps other people.
13. The grounds of appeal are that these three findings were wrong. It is urged that the judge's finding that Miss Keating told Mr Milmo of Mr Burn's new statement probably in the week after Easter 1992 was based on a misunderstanding of Mr Milmo's evidence and inferences which were inherently contradictory and conflicted with the evidence. Secondly, it is contended that the judge's conclusion that Mr Milmo would not have advised deploying Mr Burn's new witness statement was plainly wrong in the light of Mr Milmo's evidence, the tactics he in fact adopted and the tactics which it is to be presumed that competent counsel, such as Mr Milmo, would have adopted. Thirdly, the judge misconstrued the words of the Court of Appeal in concluding that deploying Mr Burn's new statement would have made no difference to the order of the Court of Appeal that Mr Murray should only pay Mr Batey 30 per cent of his costs of the appeal.
14. Dealing with the last point first, the judge referred to passages in the transcript of what Ralph Gibson and Butler-Sloss LJJ said on the matter of costs. He pointed out that Ralph Gibson LJ had made no criticism of the respondent's solicitors. He concluded that what Butler-Sloss LJ had said was opaque. He said that it was important to look at the arguments advanced on behalf of the appellant to persuade the court to make an order depriving the respondent of some of his costs. He noted that Mr Carman's reasons for this submission were:

"the position here is as follows: (1) there was on the finding of the court a material non-disclosure by Mr Batey and his advisers (I interpolate here that those advisers were of course Mr Ditchburn's firm not the present defendants) of the letter of 5 May (2) Mr Batey at the earlier stages never admitted or explained this, (again I interpolate that this was before Watson Burton were instructed). Consequently, an enquiry was necessary and reasonable and it put Mr Murray and his advisers in a situation where they had grave suspicions because, on the face of it, there was a manifest contradiction between a solicitor acting for the defendant in the action and the defendant himself. Mr Murray therefore pursued the matter. Mr Batey was slow to respond."

15. In other words, Mr Carman was relying on the non-disclosure of the letter which was (a) manifest and (b) nothing to do with the defendants in the present proceedings, and on the fact that Mr Batey had taken a long time to explain the position referring to the delay between the early summer of 1991 and March 1992. Mr Carman said that that was a situation which needed investigation.
16. Mr Platford has urged upon me that the judge made a finding of fact as to when the information was given to Mr Milmo on inadequate material, by drawing inferences contrary to passages in the evidence. He has referred me to particular parts of Mr Milmo's evidence and to the evidence of Miss Keating. He said that the judge followed arguments which were not made before him and which were in contradiction of evidence which was available.
17. I am entirely unpersuaded by these submissions. The position in fact was by no means clear and, in so far as it was open to inferences, none of the passages to which I have referred seem to me to impugn the judge's ability to make the finding of fact which he did in relation to Miss Keating's evidence, or to give any real prospect that this court would be persuaded otherwise. In my view Tuckey LJ he was entirely correct in concluding as to the first ground of appeal that this is an attempt to overturn a finding of fact which this court will not entertain.
18. As to the second ground of appeal, this is very much a question of hindsight. Mr Milmo, armed with the knowledge of Mr Burn's new statement at whatever time he may have received it, was in a very difficult position as to the advice which we ought to give and the tactics which he ought to adopt. Mr Burn was, to anyone's observation, a dangerous witness who had changed his tune substantially. It seems to me entirely understandable if in April or early May 1992 counsel decided that it was tactically preferable to seek to keep Mr Chandler's evidence out and avoid having to call Mr Burn altogether, but to keep Mr Burn in reserve. In my view, there is no real prospect of this court concluding that Mr Milmo's advice and tactful decision would have been any different from that which it was.
19. As to the third ground of appeal, the judge was entitled to conclude that Mr Carman would have cross-examined Mr Burn to the extent at the time which he did in any event. This would be seen as arising from the non-disclosure of the document and the time which Mr Batey had himself taken to respond to Mr Murray's application to introduce this into the appeal. The adverse costs order did not result from the central allegation which is made in these proceedings.
20. What leads me in the end to conclude, as I firmly do, that there is no real prospect of this proposed appeal succeeding, is that not only do I think each of these grounds has no real prospect on its own, but that, as Mr Platford accepts, it would be necessary for Mr Murray to succeed on all three of them in order for the appeal to succeed. In my view his chances of doing so are for practical purpose non existent.
21. For those reasons this application is refused.
Order: Permission to appeal refused.